Changes have been made to British legislation to comply with this directive. However, the directive continues to have effects on how employment tribunals in Britain interpret and apply discrimination law. The full text of this directive 2000/78/EC is on the EurLex website. There is a separate page on Brexit.
Broadly, this European Union directive applies to discrimination in the area of employment, self-employment, and ‘occupation’. It covers discrimination on grounds of religion or belief, disability, age or sexual orientation. Both direct and indirect discrimination are covered. It includes a requirement to make reasonable accommodation for disabled people. The directive was unanimously passed by by the EU Council of Ministers in 2000, so the UK agreed to it. Indeed the directive was influenced by UK disability legislation.
What is a directive?
A directive is legislation by the European Union which is not intended to apply directly in member states (though it may have direct effect if not properly implemented). Member states are supposed to pass national laws to put the directive into effect. Accordingly, Britain was required to amend its equality legislation so far as this did not already give the protection required by the Framework Employment Directive.
Nevertheless a directive can – and indeed should – be considered by UK courts, where the court decides that UK legislation still fails to implement the directive: see below.
How is the directive relevant in the UK?
Firstly, major changes were made to the Disability Discrimination Act 1995 (DDA) to comply with the Framework Employment Directive. Less fundamental changes were made in Equality Act 2010 which replaced the DDA. See below Changes made to disability discrimination legislation to reflect the directive.
Secondly, the directive has an ongoing effect on any areas of UK law and practice which the courts consider remain inconsistent with the directive, or where UK law is unclear but could be interpreted consistently with the directive. Even UK employment tribunals must consider the directive where it is relevant. See below Where may EU law be influencing UK law now?
In Paterson v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal said broadly that the Framework Employment Directive has bound the UK courts in employment matters since October 2004. That was when regulations designed to implement the directive took effect in the UK.
Decisions of the EU Court of Justice (ECJ) are binding on UK courts as to how the directive should be interpreted. See below Where UK law is inconsistent, what happens? Where the meaning of the directive is unclear, a UK court can ask the ECJ how it should be interpreted. (Note: what I still call the ECJ is more properly now called the Court of Justice of the European Union, or CJEU.)
Importance of the UN Convention
So far as possible, the Framework Employment Directive must be interpreted in a way that is consistent with the UN Convention on the Rights of Persons with Disabilities (CRPD):
Ring v Dansk almennyttigt Boligselskab, 2013, EU Court of Justice (ECJ)
The ECJ emphasised the importance of the UN Convention, which the EU ratified in 2010. The court said the provisions of the Convention are now an integral part of the European Union legal order. The EU’s Framework Employment Directive must, as far as possible, be interpreted in a way that is consistent with the Convention.
In the present case, the ECJ took the UN Convention into account in interpreting both the meaning of disability, and the duty to make reasonable adjustments.
Where may EU law be influencing UK law now?
Meaning of ‘disability’
The Equality Act, like the DDA previously, contains a detailed definition of disability. However the definition must not be narrower than in the directive. The UK courts accordingly take into account decisions of EU Court of Justice of the European Union (ECJ) on the meaning of disability. See particularly Disability: ‘Normal day-to-day activities’>EU law: ‘normal day-to-day activity’ is very wide in employment claims.
Ring v Dansk almennyttigt Boligselskab, 2013, EU Court of Justice (ECJ)
Like the court’s previous decision in Chacón Navas (2006), the Ring decision may be particularly useful to UK claimants whose impairment has a substantial effect only on those work-related activities which might not normally be seen as a ‘normal day-to-day activity’, eg making presentations or job interviews. (See Chacón Navas: Relevance to stammering).
The Ring decision is also important in incorporating the social model into the directive’s concept of disability, including the barriers created by people’s attitudes. It remains to be seen whether the case will lead to less emphasis on whether an impairment has a significant enough effect on a person’s abilities to be a ‘disability’, and more on barriers created by attitudes and the environment.
Paterson v Commissioner of Police of the Metropolis is an important UK case in which the Employment Appeal Tribunal cited the European court decision Chacón Navas, to support a decision that a high pressure exam for promotion is a ‘normal day-to-day activity’.
EU law is influencing how far people who are technically ‘self-employed’ can claim under the Equality Act. This includes the issue of people in the ‘gig economy’. In 2019 an employment tribunal asked the EU court how far it makes a difference if the individual is given the right to substitute someone else to do a job. See Employees, workers and beyond.
In Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust, 2016, the Court of Appeal ‘re-interpreted’ the Equality Act to comply with the directive, so that students discriminated against by a work placement provider are not left without a claim. See Work placements related to education courses.
Discrimination by association
The wording of the Equality Act 2010 now allows a claim for discrimination by association in some cases (following Changes made to disability discrimination legislation to reflect the directive). However the scope of ‘discrimination by association’ is still being worked out. For example:
- Lee v Ashers Bakery (‘gay cake’) case, 2018 – the Supreme Court held that a refusal to bake a cake with a message supporting gay marriage was not discrimination by association because the objection was to the message, not to any particular person or persons;
- Thompson v Central Bus, 2015 – the EAT applied a case which held that the key issue is not how far there is some “association” between the claimant and the disabled person, but was the discrimination because of a disability (of another person). The Thompson case was actually on victimisation ‘by association’:
Victimisation ‘by association’?
The wording of the Equality Act now allows a claim for discrimination by association in some cases. However its wording does not allow a claim for victimisation where the protected act (eg a claim for discrimination) is done by someone else, and the claimant has not themself done some protected act in relation to the claim. This wording may contravene the directive so that the Act has to be re-interpreted. See Victimisation>Victimisation ‘by association’?
Jessemey v Rowstock was a case in which the strict wording of the Equality Act indicated that post-employment victimisation was not covered by the Equality Act 2010. However the EU Framework Employment Directive required it to be covered. The Court of Appeal in 2014 held there was an error in the Act which the court could correct, so the Equality Act 2010 should be interpreted to include post-employment victimisation. For more see Victimisation: Is post-employment victimisation covered?
Wider jurisdiction over non-UK employments
Where British legislation implements an EU directive, the courts have been willing to extend the normal territorial scope of the British law to give an effective remedy to EU rights. See Employment: Connection with Great Britain: Wider scope through European Union (EU) law?
A volunteer tried unsuccessfully to rely on the directive in X v Mid Sussex Citizens Advice Bureau. She argued that her volunteering was protected under the Directive, even though the wording of the DDA (which then applied) did not cover it. The Supreme Court rejected her claim in December 2012. It held that – so far as relevant to her case – volunteers were not within the directive. On volunteering generally, see Volunteers.
Where UK law is inconsistent, what happens?
Interpreting Equality Act so as to comply (the Marleasing principle)
UK tribunals need to interpret UK legislation “so far as possible” to offer at least as much protection as the directive. This is often known as the principle in Marleasing.
This principle is not limited to situations where the Equality Act is ambiguous. The Employment Appeal Tribunal has said that even if the British statute (the Disability Discrimination Act in that case) is clear, wording can be written in to change its meaning; however, the courts cannot change it in a manner which is not “compatible with the underlying thrust of the legislation” or which is “inconsistent with the scheme of the legislation or its general principles.” (EAT in Coleman v Attridge Law).
In Paterson v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal said it would have interpreted the UK definition of disability as it did anyway just looking at domestic law. In any event though it was bound to reach that interpretation by the European Court decision in Chacón Navas.
In Coleman v Attridge Law, the Employment Appeal Tribunal held that the DDA can and should be interpreted to include direct discrimination and harassment related to someone else’s disability in employment cases. (This has been rectified in the wording of the Equality Act 2010.)
Direct effect (public sector employers)
Even though the statute cannot be reinterpreted, the UK court can give the directive “direct effect” where the employer is a public body of a member state. This includes a UK public body such as a local authority. The directive needs to be unconditional and sufficiently precise, but that test is interpreted quite widely. Where a directive has direct effect, the UK tribunal or court should decide the case before it by directly applying the provisions of the directive.
Direct effect may allow (indeed require) a tribunal to decide the case against the public body in a way which has no basis in the UK statute, and which perhaps even contradicts the UK statute.
Whilst the principle of “direct effect” is limited to enforcement against public bodies, later cases have held that a similar principle applies to discrimination claims against private sector employers as well:
“Horizontal” direct effect (private sector employers)
Because the Framework Employment Directive implements the fundamental EU right of non-discrimination, it seems likely that UK courts and tribunals should give effect to the directive even against a private sector employer, assuming the UK legislation cannot be re-interpreted under the Marleasing principle (above).
In the 2010 case of Kücükdeveci, on age discrimination, the EU Court of Justice held that a German court should give effect to the Framework Employment Directive against a private sector employer where the German statute could not be re-interpreted under the Marleasing principle.
There is every likelihood that this also applies to disability discrimination. This view is supported by the later Court of Appeal decision in Benkharbouche. To quote a blog from Cloisters Chambers: “In Benkharbouche v Embassy of Sudan (bailii.org)  … the Court of Appeal held that Directives can be relied on “horizontally” (i.e. between private parties) if the Directive is giving effect to a fundament [sic] right contained in the EU Charter which does not require specific expression in national law, such as the principle of non-discrimination.” I would add that the Court of Appeal in Benkharbouche, summarising the Kücükdeveci case, specifically said that the European Court “held that there was a general principle of non-discrimination in EU law which had to be given effect.”
This principle of relying on a directive against someone other than a member state is sometimes known as “horizontal” direct effect, or the principle in Mangold v Helm.
Amendment of the Equality Act
Where required, Parliament must amend the UK statute to be consistent with the Directive.
Suing government for compensation – Francovich damages
Where a directive does not have direct effect, and an individual suffers loss as a direct result of the UK’s failure to implement the directive, he or she may be able to sue the UK government for compensation for failing to implement it. This principle was laid down in Francovich v Italy (link to wikipedia.org). A claim would be in the county court or High Court, not the employment tribunal.
It would have to be considered whether this is still relevant to the Framework Employment Directive, given it now seems to have horizontal direct effect against private sector employers anyway.
Changes made to disability discrimination legislation to reflect the directive
In the Equality Act 2010
In general the Equality Act 2010 was formally brought into force in October 2010. However, as regards employment, the changes below were or may arguably have been already in effect, as being required by European Union law.
- Discrimination by association. In Coleman v Attridge Law (July 2008), the European Court decided that the directive covers direct discrimination or harassment of an employee by reason of another person’s disability. UK tribunals subsequently held that the Disability Discrimination Act 1995 must be re-interpreted to give effect to this (under the Marleasing principle). The Equality Act 2010 uses new wording to cover this more clearly, and also goes beyond the requirements of the directive by prohibiting discrimination by association in areas other than employment, such as provision of services. More on discrimination by association.
- Perceived disability. It has been argued that EU law requires direct discrimination and harassment to be unlawful against someone who was mistakenly thought to have a disability. The courts have not had to decide the EU law position, but have held that in any event this is covered under Britain’s Equality Act 2010. More on perceived’ disability.
- Harassment: Protection against harassment under the DDA was probably too narrow. Again the Equality Act 2010 has made changes. More on harassment.
- Justification: My view was that under European Union law the threshold for “justification” of (indirect) discrimination in employment should have been higher than the threshold used in practice under the DDA. The Equality Act 2010 has now changed the British justification test to that used in Europe.
- abolition of the exemption for employers with less than 15 employees;
- DDA extended to cover most occupations previously excluded from its employment provisions, eg police, prison officers, fire-fighters; and
- an employer can no longer justify ‘direct discrimination’. (more…).
Changes required by the directive in relation to post-16 education came into effect in September 2006.
Generally, the implementation date of the directive was 2nd December 2003. However, “if necessary” a member state had an option to extend this by a further three years as regards disability and age discrimination, in other words until December 2006.
- External links:
- European law and equality: An introduction (equallyours.org.uk) – leaflet from the Equality and Diversity Forum.
- The EU’s Anti-discrimination and relations with civil society
- Article by Richard Whittle published in the European Law Review 27(3): 303-326: “The Framework Directive for equal treatment in employment and occupation: an analysis from a disability rights perspective.”, www.leeds.ac.uk/disability-studies/archiveuk/richard%20whittle/uropean%20Directive.pdf
- Handbook of European non-discrimination law – 2011, available to download as a pdf.
- My links page includes some websites relating to new laws under the directive in various European counties.
- See my European Union page, on Article 19(1) (previously Article 13) and other European Union measures.
The directive is based on what is now Article 19(1) of the Treaty on the functioning of the European Union (it was previously ‘Article 13’).The formal name of the directive is: ‘Council Directive establishing a general framework for equal treatment in employment and occupation’. It was passed on 27th November 2000 as Council Directive 2000/78/EC and is available on the EurLex website.